Coughlin Rainboth Murphy and Lown. New Hampshire Personal Injury Attorneys

Appellate Court Affirms Liability Verdict but Slashes Pain and Suffering Award in Major Product Liability Case

Posted on December 4, 2011 by John Hochfelder

Natalie Barnhard was an ambitious, energetic, bright 24 year old who’d gone to school to become a physical therapy assistant. On October 22, 2004, three months after  landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine’s unstable condition.

Cybex argued that it was not liable because (a) Natalie’s employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident  (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past – 6 years, $25,000,000 future – 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie’s pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie’s quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

  • will forever be unable to walk and is wheelchair bound
  • has no functional use of her hands
  • is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
  • does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
  • is unable to feed herself
  • is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life’s pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

  1. Bissell v. Town of Amherst (4th Dept. 2008) – $10,000,000 ($3,000,000 past – 5 years, $7,000,000 future – 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
  2. Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) – $5,000,000 ($1,000,000 past – 4 years, $4,000,000 future – 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future – 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard’s, including:

  • Miraglia v. H&L Holding Corp. (1st Dept. 2007) – $10,000,000 ($5,000,000 past – 3 1/2 years, $5,000,000 future – 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
  • Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) – $10,000,000 ($2,000,000 past – 3 years, $8,000,000 future – 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
  • Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) – $6,500,000 ($1,000,000 past – 3 years, $5,500,000 future – 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

  • A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state’s highest court, the Court of Appeals.
  • Over defendant’s objection, testimony (from the patient Natalie was working with) that plaintiff was “monkeying around” on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff’s exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the “monkeying around” testimony would have provided a relevant and important contradistinction to plaintiff’s testimony for the jury to weigh.
  • Plaintiff’s award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
  • The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she “hoped” to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

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